Simonton v. State ex rel. Turman (44 Fla. 289, 1902)

Cartee, J.

(after stating the facts.)

I, The third ground of the motion to quash has not been argued, and will, therefore, be treated a;s abandoned. The fourth and fifth grounds will be considered in connection with the assignment of error questioning the jurisdiction of the Judge of the Spcond Circuit to render the final judgment. The first and second grounds proceed upon the theory that the information was brought by the relator in pursuance *of leave granted him by the Attorney-General, and that it was. necessary that relator should file a bond or security to protect the State for liability for costs. It is true a letter from the Attorney-General was attached to the information authorizing Solon B. Turman to bring an information in the nature of quo warranto in the name of the Attorney-General to test the right and title of responent to the office of Solicitor of the Criminal Court of Record of Hillsborough county, but the motion to file the information and the information itself purport to be brought by the Attorney-General in person, each, purports to be signed by him and neither is signed by Mr. Turm'an or by his attorneys. Upon the face of the proceedings they were not instituted in- pursuance of the authority granted in the letter, but were instituted directly by the Attorney-General for the double purpose of .ousting respondent from the office and having it judicially declared that Solon B. Turman, a person claiming title to the office, was rightfully entitled thereto. This ■he had a right to do under sections 1781 et seq. Revised Statutes. Under such circumstances the statute does not require a bond or security for costa from Mr. Turman .and, therefore, the first and second grounds of the motion were properly overruled.

II. The demurrer to the information was properly overruled. It was general, addressed to the entire information, and even though the information be defective in .its allegations ais to the right or title of relator Solon B Turman to the office, it does allege that respondent uses, enjoys, exercises and performs the functions of the public -office of Solicitor of the Criminal Court of Record of Hillsborough county without warrant or authority of law and charges usurpation of said office by him, and rs, therefore, sufficient to require him to show by what, right ■or authority he exercises or performs the functions -thereof as against the State. State ex rel. Attorney-General v. Philips, 30 Fla. 579, 11 South. Rep. 922. The proceeding as we have seen was- in behalf of the State through its Attorney-General and' the rule we announce above applies to such cases. Lake v. State ex rel. Palmer, 18 Fla. 501. If the respondent in an information of this nature brought by the Attorney-General in behalf of the State, can ever- take advantage of a defect in the allegations as to the title of another person claiming the office whose claim is recognized and set forth in the informa, tion he must do so in some manner other than by demurrer to the entire information.

III. The fourth and fifth grounds of the motion to quash, and the assignment of error questioning the jurisdiction of the Judge of the Second Circuit to render the final judgment will be considered' together.' As will be seen by reference to (he statement, the motion for leave to file the information, together with the information proposed to be filed with its exhibits were first filed in the Circuit Court of. Hillsborough county in the Sixth Circuit. The Judge of that Circuit being disqualified as appears from his certificate of record, application was made to the Judge of the Fifth Circuit for leave to t o the information and for the rule to- show cause, which was granted. Subsequently the motion to quash the rule and the demurrer to the information were heard and decided by the Judge of the Seventh Circuit, and thereafter the demurrer to respondents pleas ,was heard, and final judgment upon the demurrer was rendered against respondent by the Judge of the Second Circuit. The case was never transferred from Hillsborough county, bait remained pending there all the while, and each judge before whom the case was brought for hearinng undertook to act as to the several matters submitted pro hao vice only, or In other words, merely in the place and stead of the Judge of the Sixth Circuit who wasi disqualified. The several judges to whom the case was 'submitted for the several orders mentioned derived their power to act from section 1078 Revised Statutes, which provides that “whenever the judge of any court, other than the Supreme and Criminal Courts of Record ¡shall be unable from, absence, sickness or .other muse, or shall be disqualified from interest or any other cause to" discharge any duty whatever appertaining to his office which may be Required to be performed! in vacation or between terms, it 'shall be the duty of any other judge of a court of the same jurisdiction as the court in which the cause is pending, on the application of any party to perform such duties, and hear and determine all such matters as may be submitted to him and such judge may discharge such duties either in his own or- any other jurisdiction and shall be substituted in all respects in tbe place and stead in the matter aforesaid of the judge unable or disqualified to act.” It Ls argued here that a proper construction of this statute requires us to hold, that when application is once made to a judge of a particular circuit to perform a duty or to hear, and determine a matter, that might have been required to, be performed or heard and determined in vacation or between terms by a judge of another circuit, but for his disqualification to act, all matters subsequently arising for decision in that particular matter or cause must be submitted to the same judge so long as he is qualified and able to perform the duty or to hear and determine the matter to be submitted, and that such subsequent matters can not be submitted to the judge of a different circuit. A careful reading of the statute convince» us that this construction is untenable. The language is plain that it shall be the duty of any other .judge'of a court of the same 'jurisdiction, upon application of a party to a pending, cause, to perform any duty or hear and determine any matter therein which it would be the duty of the judge of the circuit in which the cause is pending to perform or to he'ar and determine in vacation but for his disqualification. In performing the duty required by the -statute, the judge to whom application is made, acts in the. jdace and stead of the disqualified judge, not for the purpose of hearing and deciding every matter arising in the cause, but only in respect to the particular matter submitted to him. It is also contended that the -statute is void because it confers upon Circuit Courts and Circuit Judges extraterritorial jurisdiction in violation >of section 12 Article V, constitution of 1885, and because its legal effect is to transfer a cause at law upon the application of one party only, from the circuit in which such cause is pending to the circuit of the judge who is called upon to hear and [determine a matter arising therein, in violation -of section 19 Article V, of the same constitution as interpreted by this court ’in State ex rel. Hughes vs. Walker, 25 Fla. 501, 6 South. Rep. 169, In State ex rel. Florida Pub. Co. v. Hocker, 35 Fla. 19, 16 South. Rep. 614. the constitutionality of the statute •in question was upheld as against the contentions now made in this cause, and we are satisfied that decision is correct. It is claimed, however, that in that case the question was simply whether the statute was eonstitu tional in so far as it applied to the hearing and determination of a demurrer to a declaration, while in the present case the Judge of the Second Circuit proceeded to render a final judgment against respondent. It is true the two cases differ in the respect pointed out, but we think they are both controlled by the same principles. In either cáse tfoeire is no transfer of the cause, nor exercise of extraterritorial jurisdiction. The judgment in this case was a judgment final upon demurrer to the respondent’s pleas, no leave to plead over being requested or given. It was lawful to hear and decide the demurrer to pleas in tbiw case, and to render the proper judgment upon such demurrer, in vacation or between terms. The power to hear and determine a demurrer, which was affirmed in the case mentioned (State ex rel. Florida Pub. Co. v. Hocker, 35 Fla. 19, 16 South. Rep. 614.) necessarily involves and includes the power to render the jn-oper judgment upon that demurrer, in all cases where such judgment can lawfully be entered in vacation or between terms. We think the statute' gave power to the several judges pro hao mee to hear and determine the matters submitted to them in the present case, and power to the Judge of the Second Circuit pro hao.vioe to render final judgment against respondent, and that 'the statute is constitutional.

IV. Exhibit “B” attached to the information, and referred to therein^® the commission under which it is alleged that relator Solon B. Turman is entitled1 to hold the office of County Solicitor for'four years from its date, June 8th, 1899. This commission, purports to have been issued- in pursuance of an appointment of the Governor confirmed by the Senate, for the unexpired term of Peter O. Knight, resigned, which term according to the recitals in the commiission and the allegations of some of the pleas expired April 27th, 1901. Each of the pleas of respondent, except the first, alleges that on April 27, 1901, respondent was duly appointed to said office and confirmed by the Senate, for four years from said date, and his commission- reciting these facts is- referred to- and attached as an exhibit to some o-f the pleas. There is no denial in any of the plea® that the facts recited in Turman’s commission are true, and in determining the propriety of the ruling on the demurrer to> the pleas (except the first), we muis-t consider a® true the facts recited in Turman's commission as well as the facts alleged in the pleas and shown by the exhibits. Relator, under the demurrer to the pleas, contends that although his appointment, confirmation and commission purports to be limited to¡»the unexpired term of Peter 0.-Knight, resigned, to-wit: until April 27th, 1901, yet that under the constitution he is entitled to hold the office for four years from the date of his commission, viz: until June 8th, 19.08; and, that consequently the appointment of respondent', on April 27, 1901, was. void, and conferred, no right- to the office on him. To this contention we will now address ourselves. Before quoting the provisions of the present constitution bearing upon the subject, it may be well to refer to certain provisions in the constitution of 18G8, and the construction pieced by this court thereon. Section 7, Article VI, of that constitution, provided that “there ¡shall be seven Circuit Judges appointed by the Governor and confirmed by the Senate who shall hold their office for eight years.” Section 7, Article V, provided that “when any office from1 any cause shall become vacant, and no •mlode is provided by this constitution, or by the1 law's of the State for filling such vacancy, the Governor .shall have the power to fill such vacancy by granting a ¡commission which shall expire at the next election. In the Executive Communication of January 19,1877.16 Fla. 841, the court in answer to the question whether under that constitution and the laws, a Judge of the Circuit Court, appointed by the Governor and confirmed by the Senate held hi>s office for eight,years in a case where there had been a. previous incumbent who, while appointed for eight' years, had filled the office only for a part of that time, and whether, in ¡such case the second incumbent, appointed and confirmed in. conformity ter constitutional authority before the expiration of the time for which a previous incumbent had been appointed held hi® office for the full time of eight years, or for the balance of the unexpired time for which the first incumbent was to hold, isaid “the language of ¡the constitution is plain and simple; ‘there shall be seven Circuit Judges appointed by the Governor and confirmed by the Senate, who ¡shall hold their office for eight years.’ * * * There is nothing in this which limits the time of service of one appointee' by reference to the time served by a previous one. The plain literal construction of that section is, that whenever the two acts, appointment by the Governor and confirmation, by the Senate unite, the result is the party is entitled to the office anld the express declaration is that he shall hold the office for ei-ght years. Unless, therefore, there is some other provision of the constitution limiting or otherwise explaining this language it must have its usual and ordinary effect. There is nothing here establishing a term of office to exist between fixed dates of months or years, nor te there anything having the most, remote reference to an unexpired term, or to a vacancy in an office as' distinct from the offic